United States District Court, D. Alaska
ORDER
H.
Russel Holland, United States District Judge.
This is
an action for judicial review of the denial of disability
benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 401-434. Plaintiff Danielle Mellanie Chandler
has timely filed her opening brief, [1] to which defendant, Andrew
Saul, [2] has timely responded. Oral argument was
not requested and is not deemed necessary.
Procedural
Background
On
October 8, 2012, plaintiff filed an application for
disability benefits under Title II of the Social Security
Act, alleging that she became disabled on May 28, 2011.
Plaintiff originally alleged that she was disabled due to
graves disease and possibly lupus. But, at the second
administrative hearing, plaintiff alleged that she was
disabled due to trochanteric bursitis in both hips, lumbar
degenerative disc disease, radiculopathy in both legs, and
depression. Plaintiff's application was denied initially
and on reconsideration. Plaintiff requested a hearing, and
after an administrative hearing on November 26, 2013, an
administrative law judge (ALJ) denied plaintiff's
application. Plaintiff sought review of the ALJ's April
11, 2014 unfavorable decision. On October 14, 2015, the
Appeals Council denied plaintiff's request for review.
Plaintiff sought judicial review and on February 14, 2017,
the U.S. District Court for the District of Oklahoma remanded
this matter for further proceedings. Upon remand, an
administrative hearing was held on March 8, 2018. After this
second hearing, the ALJ again denied plaintiff's
application. Plaintiff sought review of the ALJ's
unfavorable decision. On March 9, 2019, the Appeals Council
denied plaintiff's request for review, thereby making the
ALJ's April 13, 2018 decision the final decision of the
Commissioner. On May 6, 2019, plaintiff commenced this action
in which she asks the court to review the Commissioner's
final decision.
General
Background
Plaintiff
was born on June 7, 1978. Plaintiff was 32 years old on her
alleged onset date, 35 years old at the time of the first
administrative hearing, and 39 years old at the time of the
second administrative hearing. Plaintiff completed tenth
grade and then obtained a GED. Plaintiff's past relevant
work was a customer service clerk, a telemarketer, a cashier,
a supervisor, and a front desk clerk.
The
ALJ's Decision
The ALJ
first found that plaintiff met “the insured status
requirements of the Social Security Act through September 30,
2015.”[3]
The ALJ
then applied the five-step sequential analysis used to
determine whether an individual is disabled.[4]
At step
one, the ALJ found that plaintiff had “not engage[d] in
substantial gainful activity during the period from her
alleged onset date of May 28, 2011 through her date last
insured of September 30, 2015. . . .”[5]
At step
two, the ALJ found that “[t]hrough the date last
insured, the claimant had the following severe impairments:
degenerative disc disease and obesity. . .
.”[6]
At step
three, the ALJ found that “[t]hrough the date last
insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1. . . .”[7]
“Between
steps three and four, the ALJ must, as an intermediate step,
assess the claimant's RFC.” Bray v. Comm'r
of Social Security Admin., 554 F.3d 1219, 1222-23 (9th
Cir. 2009). The ALJ found that
through the date last insured, the claimant had the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) except she was able to lift or carry 20
pounds occasionally and 10 pounds frequently; occasionally
climb ladders, ropes or scaffolds; occasionally stoop; sit,
stand, or walk for 6 hours out of an 8-hour workday all with
normal breaks; and push or pull 20 pounds occasionally and 10
pounds frequently.[8]
The ALJ
found plaintiff's pain and symptom statements less than
credible. The ALJ considered the lay testimony of Linda
Parker, [9] Misty Jo Beauchaine, [10] Elizabeth
Norton, [11]Leah Shankle, [12] and Joseph
Chandler[13] but gave all of it little
weight.[14] The ALJ gave Dr. Scheirman's and Dr.
Ryan's opinions great weight.[15] The ALJ gave great
weight[16] to the opinion of Dr.
Shadid.[17]
At step
four, the ALJ found that “[t]hrough the date last
insured, the claimant was capable of performing past relevant
work as a telemarketer and customer service
representative.”[18] This finding was based on the
testimony of the vocational expert at the second
administrative hearing.[19]
Thus,
the ALJ concluded that “[t]he claimant was not under a
disability as defined in the Social Security Act, at any time
from May 28, 2011, the alleged onset date, through September
30, 2015, the date last insured. . . .”[20]
Standard
of Review
Pursuant
to 42 U.S.C. § 405(g), the court has the “power to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of
the Commissioner. . . .” The court “properly
affirms the Commissioner's decision denying benefits if
it is supported by substantial evidence and based on the
application of correct legal standards.” Sandgathe
v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
“Substantial evidence is ‘more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Id. (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). “‘To determine whether substantial
evidence supports the ALJ's decision, [the court]
review[s] the administrative record as a whole, weighing both
the evidence that supports and that which detracts from the
ALJ's conclusion.'” Id. (quoting
Andrews, 53 F.3d at 1039). If the evidence is
susceptible to more than one reasonable interpretation, the
court must uphold the Commissioner's decision.
Id. But, the Commissioner's decision cannot be
affirmed “‘simply by isolating a specific quantum
of supporting evidence.'” Holohan v.
Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999)).
Discussion
Plaintiff
first argues that the ALJ erred in finding her pain and
symptom statements less than credible. “An ALJ engages
in a two-step analysis” in evaluating “a
claimant's testimony regarding subjective pain or
symptoms. . . .” Garrison v. Colvin, 759 F.3d
995, 1014 (9th Cir. 2014). “‘First, the ALJ must
determine whether the claimant has presented objective
medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms
alleged.'“ Id. (quoting Lingenfelter
v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)).
“In this analysis, the claimant is not required to show
‘that her impairment could reasonably be expected to
cause the severity of the symptom []he has alleged; []he need
only show that it could reasonably have caused some degree of
the symptom.'” Id. (quoting Smolen v.
Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). “Nor
must a claimant produce ‘objective medical evidence of
the pain or fatigue itself, or the severity
thereof.'” Id. (quoting Smolen,
80 F.3d at 1282). “If the claimant satisfies the first
step of this analysis, and there is no evidence of
malingering, ‘the ALJ can reject the claimant's
testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing
so.'” Id. at 1014-15 (quoting
Smolen, 80 F.3d at 1281). “This is not an easy
requirement to meet: ‘The clear and convincing standard
is the most demanding required in Social Security
cases.'” Id. at 1015 (quoting Moore v.
Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th
Cir. 2002)). “‘General findings are insufficient;
rather, the ALJ must identify what testimony is not credible
and what evidence undermines the claimant's
complaints.'” Berry v. Astrue, 622 F.3d
1228, 1234 (9th Cir. 2010) (quoting Lester v.
Chater, 81 F.3d 821, 834 (9th Cir. 1995)).
Plaintiff
argues that the first reason the ALJ gave for finding her
pain and symptom statements less than credible was because
they were inconsistent with her 2011 lumbar spine MRI. The
ALJ stated that her RFC was “supported by an MRI of the
lumbar spine noting a small disc protrusion, mild disc bulge,
and early degenerative facet changes in October
2011[.]”[21] This appears to have been the ALJ's
way of saying that plaintiff's pain and symptom
statements were not supported by the medical evidence, in
particular the 2011 lumbar spine MRI. Plaintiff argues that
this was not a clear and convincing reason because she had
another MRI of her lumbar spine, which was done in 2013, and
the results of which were: “1. Degenerative disc
disease L5-S1 with reactive bone marrow edema. 2. Multilevel
broad-based disc bulges with bearing degrees of central canal
stenosis and neural foraminal narrowing.”[22] Plaintiff
argues that the 2013 MRI clearly showed a worsening condition
and that the ALJ “cherry-picked” the 2011 MRI and
ignored the 2013 MRI as well as important findings from Dr.
Ahmadinia, the spine surgeon, and her lumbar CT spine.
Plaintiff complains that the ALJ only noted that Dr.
Ahmadinia's assessment was lower back pain but did not
acknowledge that he had also noted that plaintiff had
“L5-S1 disc herniation and
stenosis.”[23] Plaintiff also contends that the ALJ
ignored the fact that the CT scan of her lumbar spine in 2015
“demonstrate[d] changes of the L5-S1 disc. There is
also evidence of L5-S1 loss of disc height and facet
arthropathy. There is also evidence of a possible disc
herniation causing stenosis at ¶ 5-S1 which is also
calcified.”[24]
To the
extent the ALJ discounted plaintiff's pain and symptom
statements because they were inconsistent with her 2011 MRI,
this was not a clear and convincing reason. As plaintiff
points out, the results of her 2013 MRI and her 2015 CT scan
showed that her low back condition was getting worse.
Although the ALJ mentioned both the 2013 MRI and the 2015 CT
scan in her discussion of the medical evidence,
[25]
the ALJ did not seem to take these objective findings into
account when assessing whether there was objective medical
evidence supporting plaintiff's subjective complaints.
Rather, the ALJ seemed to focus on only the 2011 MRI. In
assessing credibility, the ALJ must “‘[f]irst . .
. determine whether the claimant has presented objective
medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms
alleged.'” Garrison, 759 F.3d at 1014
(quoting Lingenfelter, 504 F.3d at 1035-36). The ALJ
does not meet this requirement by focusing on only one piece
of objective medical evidence.
The
next reason given by the ALJ for discounting plaintiff's
pain and symptom statements was that “although the
claimant treated for low back pain, had some abnormal MRI
findings, and reported continued pain despite conservative
treatment, the claimant reported wanting to continue
conservative treatment. . . .”[26] Plaintiff argues that the
ALJ improperly applied SSR 82-59 in reaching this
conclusion.[27] “SSR 82-59 . . . provides that an
ALJ may deny benefits to a claimant who has a disability if
the claimant unjustifiably fails to follow prescribed
treatment that is clearly expected to restore capacity to
engage in any [substantial gainful activity].”
Molina v. Astrue, 674 F.3d 1104, 1114 n.6 (9th Cir.
2012). In other words, “Social Security Ruling 82-59
delineates the circumstances in which the [Commissioner] can
deny benefits on the basis that the claimant has failed to
follow prescribed treatment.” Roberts v.
Shalala, 66 F.3d 179, 183 (9th Cir. 1995). The rule has
no application in this case because the Commissioner did not
deny plaintiff's benefits because she failed to follow
prescribed treatment. Molina, 674 F.3d at 1114 n.6.
Rather, plaintiff's alleged “failure to seek
treatment . . . was merely a factor in the ALJ's
credibility determination.” Id. That does not
mean, however, that plaintiff's wanting to pursue
conservative treatment was a clear and convincing reason for
the ALJ to discount plaintiff's pain and symptom
statements.
“[A]
conservative course of treatment can undermine allegations of
debilitating pain[.]” Carmickle v. Comm'r,
Social Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
However, “such fact is not a proper basis for rejecting
the claimant's credibility where the claimant has a good
reason for not seeking more aggressive treatment.”
Id. The ALJ relied on the fact that in 2015,
plaintiff elected to continue with conservative treatment
rather than going forward with surgery. Plaintiff testified
that she made this decision because the doctor
said [the surgery] would alleviate some of the low back pain,
but the risk in that is also that it could cause further
injury up higher in my back, in the mid section of my back.
At that time I didn't feel like that risk was worth [it.]
I just didn't feel like it was worth it to cause more
problems.[28]
Plaintiff
had a good reason for not pursuing the more aggressive
treatment option. Moreover, Dr. Ahmadinia did not prescribe
surgery but rather “discussed . . . treatment
options” with plaintiff, one of which was
surgery.[29] The fact that plaintiff did not elect to
have spinal fusion and instead decided to continue with more
conservative treatment was not a clear and convincing reason
for finding her pain and symptom statements less than
credible.
The
next reason the ALJ gave for finding plaintiff's pain and
symptom statements less than credible was that there was not
sufficient evidence to support her reports of bilateral feet
numbness. Specifically, the ALJ noted that “there was
no lower extremity electromyography examination results to
support these complain[ts.]”[30] Plaintiff argues that
this was not a clear and convincing reason because an ALJ
“may not discredit the claimant's testimony as to
the severity of symptoms merely because they are unsupported
by objective medical evidence.” Lingenfelter,
504 F.3d at 1036 (citation omitted). Yet, according to
plaintiff, that is exactly what the ALJ did.
Defendant,
however, argues that this was a clear and convincing reason
because the only EMG results in the record were
normal.[31] Defendant also contends that plaintiff
was representing to providers that her peripheral neuropathy
had been confirmed by an EMG, [32]which was simply not true.
Defendant insists that the ALJ properly relied on the lack of
objective medical evidence as an indicator of whether
plaintiff's subjective complaints were credible.
But, as
plaintiff points out, the ALJ did not mention either the
normal EMG or that plaintiff had told a provider in December
2016 that her peripheral neuropathy had been confirmed by an
EMG. “Long-standing principles of administrative law
require [the court] to review the ALJ's decision based on
the reasoning and factual findings offered by the ALJ-not
post hoc rationalizations that attempt to intuit
what the adjudicator may have been thinking.”
Bray, 554 F.3d at 1225.
Here,
the ALJ found that plaintiff's reports of bilateral feet
numbness were not supported by objective medical evidence.
But, an ALJ “may not discredit the claimant's
testimony as to the severity of symptoms merely because they
are unsupported by objective medical evidence[, ]”
Lingenfelter, 504 F.3d at 1036 (citation omitted).
This was not a clear and convincing reason for finding
plaintiff's pain and symptom statements less than
credible.
The
next reason given by the ALJ for discounting plaintiff's
statements was that “the file is void of any consistent
treatment for her low back, neck, or numbness in
2014[.]”[33] An ALJ may discount a claimant's
pain and symptom statements based on a lack of consistent
treatment. Burch v. Barnhart, 400 F.3d 676, 681-82
(9th Cir. 2005). But, plaintiff argues that she did seek
consistent treatment for her pain and numbness in 2014. In
2014, plaintiff saw her providers at Oklahoma Pain and
Wellness on May 8, August 4, October 3, and on December
3.[34] She argues that this was consistent
treatment.
Defendant
argues that it is significant that plaintiff did not seek any
treatment for her pain and numbness for the first six months
of 2014. Defendant points out that plaintiff had her first
administrative hearing in November 2013 and that she did not
see her provider again until one month after the ALJ issued
an unfavorable decision in April 2014. Defendant appears to
be suggesting that plaintiff stopped seeing her pain
management provider because she believed that ...